CARES Act – Patent Deadline Extensions for COVID-19 Related Delays

The CARES Act (March 27, 2020) provides the USPTO Director with authority to extend deadlines to account for our current national emergency regarding the COVID-19. Dir. Iancu today announced a set of extensions noting that “we are working to provide as much relief as possible to our stakeholders, consistent with our ability to maintain the USPTO’s fee-funded operations. We are especially mindful of the outsized impact on small businesses and independent inventors, and have provided additional relief for these groups. Ultimately, our goal is to ensure not only that inventors and entrepreneurs can weather the storm, but that they can hit the ground running once it passes.”

The basic rule is that most PTO prosecution deadlines March 27 to April 30 are eligible for a 30-day extension if filed with a statement that the delay “is due to the COVID-19 outbreak” and some party involved with the prosecution “was personally affected.” Here, the personal impact can apply to applicants, patent owners, 3rd party requesters, inventors, practitioners, etc. This list presumably includes non-human corporate owners. The “personally affected” clause is quite broad and includes office closures, cash flow interruptions, inaccessibility of files, travel delays, family illnesses, or other non listed reasons.

Note, the extension does not cover original filing deadlines; PCT or national stage filing deadlines; Deadlines for filing a non-provisional application following a provisional; or deadline for filing an inter partes review petition.

Finally, the notice says “Yes” — “The USPTO is open for the filing of patent documents and fees.”

(1) CARES Act deadline extensions are available not only for submissions that were originally due between March 27 and April 30, but also for submissions that were originally due *before* the period and then *extended into* the period by an ordinary extension of time.

I thought that I would go ahead and provide the ‘meat’ of the statement from that form:

“A practitioner, applicant, patent owner, petitioner, third-party requester, inventor, or other person associated with the filing or fee was personally affected by the COVID-19 outbreak, including, without limitation, through office closures, cash flow interruptions, inaccessibility of files or other materials, travel delays, personal or family illness, or similar circumstances, such that the outbreak materially interfered with timely filing or payment.”

I have to wonder who might at this point NOT be personally affected.

The crux then appears to come down to the “such that… materially interfered…”

Is this a ‘but for’ materiality?

Also noting – and definitely not condoning – but since the AIA eradicated every instance in the MPEP of “with deceptive intent,” is there a sense of sliding relativism (e.g., well it seems material to me) that makes the ‘materially interfered’ as widespread as the ‘personally affected’ clause?